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Alani v Shankar [2011] FJHC 499; HBC80.2007 (5 September 2011)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

ACTION NO: HBC 80 OF 2007

BETWEEN:

JOASA ALANI of Naqalimare, Navosa
PLAINTIFF

AND:

SHIU SHANKAR of Naqalimare, Navosa
DEFENDANT

BEFORE : Priyantha Nawana J.

COUNSEL
Plaintiff : Mr E Maopa
Defendant : Mr H A Sha

Date of Trial : 16 August 2011

WRITTEN SUBMISSIONS

Plaintiff : 23 August 2011
Defendant : 26 August 2011 (Not Filed)

Date of Judgement : 05 September 2011

JUDGEMENT

1. The plaintiff, by his writ of summons dated 08 March 2007, instituted action against the defendant claiming special damages in an amount of $ 2,390.00. In addition, the plaintiff claimed general damages, the interest thereon and costs of the action.
   
2. The action by the plaintiff was sequel to a vehicular accident on 11 December 2004 involving the truck bearing No. CG 118 owned by the defendant at Talenaua, Serua along Queen's Road.
   
3. The action, according to the statement of claim dated 02 March 2007, was founded on the basis that the defendant had employed the plaintiff as a driver from 2002 to December 2004; and, that the defendant caused the plaintiff to drive the aforesaid truck knowingly that it was mechanically faulty. The plaintiff also alleged that the accident resulted in serious injuries, loss and damage to him. The suit was, accordingly, based on negligence of the defendant.
   
4. The plaintiff sought to particularize the alleged negligence in paragraph 6 of his statement of claim as follows:
   

'PARTICULARS OF NEGLIGENCE

1. Knowledge that such vehicle had mechanical problem.
   
2. Knowledge that the drag arm link of such vehicle was being repaired and welded and in any time such drag arm link might become faulty.
   
3. Failing to inform the plaintiff of the repair and the welded arm link.
   
4. Allowing the plaintiff to drive such vehicle with full knowledge that such vehicle had mechanical defects.
   
5. Allowing the plaintiff to carry passengers and cargoes on such vehicle.
   
6. Failing to give adequate information to the plaintiff about the mechanical defects of the said vehicle and or failing to take necessary action to advise or prevent the plaintiff from such vehicle'
   

5. The defendant, in his statement of defence dated 06 November 2009, admitted that he was the owner of the vehicle but denied that the plaintiff was employed as a driver under him. The defendant pleaded that the vehicle was taken by the plaintiff on hire to serve his own purposes and caused the accident on 11 December 2004 due to reckless and dangerous driving making the vehicle a complete written-off. He denied any knowledge of mechanical defects in the truck as pleaded by the plaintiff in paragraph 6 of his statement of claim. The defendant, accordingly, counterclaimed for the value of the vehicle being $ 30,000.00; for its loss of use being $ 20,000.00 and for costs, for alleged negligence on the part of the plaintiff.
   
6. The plaintiff filed an affidavit dated 30 May 2011 to constitute his evidence-in-chief in support of the claim. In addition, he adduced oral evidence at the trial and said that he was employed by the defendant from 2002. He took passengers on board of the truck on 11 December 2004 to Suva Market in Suva along with their farm produce. He stated that as he reached Talenaua and started ascending the hill, the vehicle started to move in a zigzag path and he lost control until it hit an electricity post. The accident resulted in death of a few passengers and caused fractures on both legs of the plaintiff.
   
7. The plaintiff further stated that he was hospitalized for more than a month where he underwent three surgeries. He had one of the nerves behind the ankle on the right foot 'snapped' and three toes on the same foot dislocated. He had also sustained an open wound behind the ankle on the left foot and a dislodgement of the joint on the left foot at the ankle. The effect of the injuries, as asserted by the plaintiff, was such that he could not drive vehicles and his working capabilities in general were diminished.
   
8. Answering cross-examination, the plaintiff admitted that he had no evidence to show that he was employed by the defendant. He took the vehicle around 8.00 p.m. on 10 December 2004 and left Sigatoka for Suva around 10.30 p.m. after loading the farm produce to the capacity. He further said that he slept for about an hour at Navuthulevu around 12.00 midnight and that the accident took place around 4.00 a.m. on 11 December 2004 at Waindroka Bay on Queen's Highway in Talenaua after resumption of the journey. The plaintiff admitted that he had no complaints about the vehicle when he returned it around 3.00 p.m. on 09 December 2004 after transporting tobacco the whole day where he had to drive through rough roads along hills while negotiating bends. He did not have a complaint of any defect when he commenced the transport of the farm produce and the passengers around 10.30 p.m. on 10 December 2004 and the brake system was found to be in order.
   
9. Raivoni Nanukuruwa, giving evidence for the plaintiff said that he was occupying the front passenger seat of the truck in the journey. He said that they were going down a deep slope on the highway and the load was too heavy with about 20 passengers, too, on board of the truck. The plaintiff-driver was trying to swerve the vehicle but he could not control its movements resulting in a collision with an electricity post.
   
10. Viliame Naroqa, who allegedly came to the scene after the accident, was called next to testify on behalf of the plaintiff. His evidence was not, however, proceeded with by learned counsel for the plaintiff as he had deposed to an incident that took place on 10 December 2004 in his affidavit dated 30 May 2011.
    
11. The plaintiff, accordingly, closed his case only with the oral testimony of the two witnesses.
    
12. The defendant, who relied on his affidavit evidence insofar his evidence-in-chief was concerned, was subjected to cross-examination by learned counsel for the plaintiff. The defendant denied any welding of the 'arm-link' of the vehicle CG 118 and said that it [the arm-link] was lying on the road near the point of impact. The defendant stated that the 'arm-link' controlled the maneuvering of the vehicle. He admitted that he had no receipts to substantiate his losses alleged in the counterclaim.
    
13. Upon an analysis of the evidence adduced on behalf of the plaintiff and the defendant, I would consider initially the liability, if any, of the defendant vis-a-vis the plaintiff in the tort of negligence.
    
14. The law requires the proof of four factors to impose liability in the tort of negligence on the defendant. They are:
    
    • (i) The duty of care owed by the defendant to the plaintiff;
      
    • (ii) The breach of that duty of care by the defendant in the sense that he failed to measure up to the standard set by law;
      
    • (iii) A causal connection between the defendant's careless conduct and the damage complained of; and,
      
    • (iv) That the particular damage to the plaintiff is not so unforeseeable or too remote.
      
15. The requirement of duty of care in the tort of negligence has been expounded in 'Clerk and Lindsell on Torts'; 19th Ed.; Sweet and Maxwell [2006] at page 383 as follows:
    

The duty in negligence, therefore, is not simply a duty not to act carelessly; it is a duty not to inflict damage carelessly. Since damage is the gist of the action, what is meant by 'duty of care situation' is that it has to be shown that the courts recognise as actionable the careless infliction of the kind of damage of which the claimant complains, on the type of person to which he belongs, and by the type of person to which the defendant belongs.

(My emphasis)

16. The duty of care envisaged by law in the context of the tort of negligence, therefore, largely, if not exclusively, depends on the type of the person that the claimant belongs to. Consequently, identification of the relationship between the plaintiff and the defendant is of paramount importance to understand the extent of duty of care that the law imposes on the defendant.
    
17. Despite the plaintiff pleading in his statement of claim that he was an employee of the defendant, no evidence whatsoever was presented in court at the trial to establish the master-servant relationship. The defendant, on the other hand, whilst admitting that he was the owner of the ill-fated vehicle, testified that the plaintiff took the vehicle on hire on 10 December 2004 at a rental of $ 230.00 to transport farm produce to Suva. The plaintiff did not challenge the evidence of the defendant in regard to the fact that he was only a hirer as asserted to by the defendant. In the circumstances, I hold that the plaintiff has not proved that he was a servant and/or employee of the defendant. The evidence only showed that the plaintiff drove the vehicle as an independent hirer and the defendant was only the owner of the vehicle.
    
18. In transport accidents, the owner must take reasonable care in relation to the condition of the vehicle, the safety of goods as well as passengers. There will be no liability for latent defects that are undiscoverable on reasonable examination. However, there is a duty to inspect and test the vehicle periodically and to repair the defects, which a reasonable examination should have revealed. See Clerk and Lindsell on Torts (Supra) at Pg. 508.
    
19. Moreover, when the defendant lends chattel (the truck in this instance) without a discoverable defect as enumerated above, he attracts liability in negligence in relation to the plaintiff and/or a third party in limited circumstances. The essentials of such liability are that the defendant must have retained the right to control the use of chattel and he also must have an interest in the purpose for which it was being used (See Morgans v. Launchbury and Others; [1972] UKHL 5; 1973 AC 127 (H.L.); Nelson v. Raphael [1979] RTR 43.
    
20. The burden entirely lay on the plaintiff to establish that the defendant had been negligent or careless in his conduct in bringing about the situation of causing injuries, loss and damage to the plaintiff. If the evidence of the plaintiff does not show the presence of such negligent or careless conduct on the part of the defendant, then the case for the plaintiff fails. See Bonnington Castings Ltd. v. Wardlaw [1956] UKHL 1; [1956] A.C. 613; Jones v. Great Western Railway. H.L. [1930] 47 TLR 39.
    
21. The defendant, on the other hand, could be considered as having acted in breach of his duty of care on account of his negligence, if his conduct fell short below the standard required by law. This standard is that of a reasonable and prudent man. The following principle of law In Blyth v Birmingham Waterworks [1856] AER 478 (at 479), is often cited and relied upon to explain negligence. That reads:
    

[...] omission to do something [,] which a reasonable man guided upon those considerations [,] which ordinarily regulate the conduct of human affairs, would do; or doing something [,] which a prudent and reasonable man would not do.

See also Glasgow Corporation v Muir [1943] UKHL 2; [1943] AC 448 at 457 and London Graving Dock v Horton [1951] AC 737 at 785.

22. It is common ground, as admitted by the plaintiff and the defendant, that the defendant was the owner of the vehicle, which met with the accident on 11 December 2004 when it was being driven by the plaintiff causing injuries to him and making the vehicle a complete written-off.
    
23. It is also common ground that the plaintiff did not complain of any defect in the vehicle when he returned the same on 09 December 2004 after completing that day's work or when he resumed driving around 10.30 p.m. on 10 December 2004 to go to Suva. Instead, the plaintiff loaded the vehicle, perhaps over its full capacity, with the farm produce and with passengers - as much as twenty in number - on board the back tray and proceeded on the journey.
    
24. At the trial, the plaintiff did not indeed place any evidence on any defect in the mechanical part referred to as 'drag arm-link' to impute knowledge of such defect on the defendant albeit the matter being specifically pleaded. There was no expert opinion either as to the cause of the accident. The doctrine of res ipsa loquitur too was neither pleaded nor relied upon at any stage of the proceedings.
    
25. Instead, the plaintiff relied only on the oral testimony of Mr Isikeli Tobua, Technical Officer of the Land Transport Authority (LTA) before the Magistrate's Court of Navua in criminal proceedings had against the plaintiff under LTA Act for dangerous driving, as contained in the 'Agreed Bundle of Documents' (Written Submissions by learned counsel on behalf of the plaintiff dated 23 August 2011) to show that the reason for the accident was disengagement of the 'arm-link'.
    
26. The evidence of Mr Tobua, as admitted by both parties in the 'Agreed Bundle of Documents', was, accordingly, relied upon to explain the steering mechanism of the vehicle. The relevant evidence revealed as follows:
    

'Steering linkages [sic] connection was not there. This allows control of steering. This connection would start to play first. Regular checks would have been sighted [sic]

Connection is linked and will disengage on excessive wear out impact [sic]. If there is excessive play [,] driver should stop vehicle and reduce speed.'

27. I do not admit Mr Tobua's evidence as that of an expert witness particularly in the absence of any material as to his expertise on the subject to conclude on probable cause of the accident; and, also because the evidence of Mr Tobua, in any event, is deficient in material substance to qualify for such expert evidence. Nevertheless, I am not hesitant to accept that piece of evidence in view of the agreement of the parties as that of an official of the LTA who examined the wreckage soon after the incident for court to be able to understand the loss of manoeuvring capabilities of the vehicle as the sole reason for the accident, as asserted by the plaintiff. Loss of manoeuvring capabilities, therefore, formed the essence of the complaint of the plaintiff to impute negligence on the defendant even though no evidence by the plaintiff himself was presented to court.
    
28. In light of the above admitted evidence, it is clear that the loss of control of the steering of the vehicle could not have been sudden if it was due to the wear of that mechanical part referred to as 'arm-link'. Loss of control, instead, could have been resulted due to excessive wear and could have been felt by the driver by an excessive play of the steering wheel. The ultimate disengagement of the arm-link only would result in the complete loss of control after a gradual process of wear; and, such process is symptomized with the start of a play, according to the evidence admitted by parties.
    
29. The undisputed evidence before me is that the plaintiff drove the vehicle the whole day on 09 December 2004 on rough roads along hills negotiating bends. He also drove the vehicle on the date of the accident many miles with a rest for him, the crew and for the vehicle. He did not find anything faulty in the mechanisms of the vehicle. So much so that it did not become necessary for him to complain to the defendant of any defect until he made such complaints only in the statement of claim in order to found this suit based on negligence against the defendant. He, most importantly, did not offer evidence on the alleged defect or any knowledge of such defect on the part of the defendant at the trial.
    
30. The Vehicle Inspection History issued by the LTA as contained in the 'Agreed Bundle of Documents', on the contrary, showed that the vehicle had been subject to regular tests for five consecutive years from 2000. The vehicle had been certified to be roadworthy on 29 January 2004 by LTA and that certificate was valid until 29 January 2005.
    
31. If a defect in the steering mechanism had developed, in light of the above agreed facts, it was the plaintiff and the plaintiff alone who could have first felt it. He should in turn have brought it to the notice of the defendant as the vehicle had been continuously driven by the plaintiff during the time preceding and at the time of the accident.
    
32. There is absolutely no evidence of a complaint of such defect by the plaintiff to the defendant. In the circumstances, there is no evidence before me to come to a finding that the defendant had been aware of a defect or a potential defect in the vehicle when it was given on hire to the plaintiff for court to impute negligence against the defendant. The defendant also cannot be faulted for an omission in the conduct of his affairs as a reasonable and prudent owner of a vehicle to know of a defect, which is not discoverable on a reasonable inspection. The affidavit evidence of the defendant that '... [he] had thoroughly checked [his] truck...' before giving on hire on 10 December 2004 in this context is relevant and that evidence remained unchallenged.
    
33. The defendant, in the absence of such knowledge of a mechanical defect, which is not easily discoverable; and, without any evidence on omission to constitute negligence cannot be regarded as having acted in breach of his duty of care towards the plaintiff as set out in paragraph 14 (ii) above. In the absence of evidence on careless conduct so as to inflict damage on the plaintiff, the issue of causal connection and foreseeability of such damage respectively under paragraphs 14 (iii) and (iv) will not arise. In the result, I hold that the plaintiff has failed to establish the four bases set-out in paragraph 14 above to impose liability in the tort of negligence against the defendant.
    
34. I, therefore, hold that the plaintiff has failed to prove his case beyond balance of probabilities. Accordingly, I dismiss the plaintiff's action.
    
35. The defendant, too, has not proved the case in respect of his counterclaim for damages based on plaintiff's alleged negligence in causing the accident by placing sufficient evidence and by particularising the extent of damage and loss. I, accordingly, dismiss the defendant's counterclaim, too.
    
36. Having regard to the facts of the case, I do not award costs. Parties are to bear their own costs.
    

Priyantha Nawana
Judge

High Court
Lautoka
05 September 2011